Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are using incredibly invasive surveillance technology as part of their continued efforts to target and tear apart communities across the country. They’re doing so in near-total secrecy and without any public accountability.

The ACLU has been asking ICE and CBP for basic information about this program for years, and now we’re asking a federal court to intervene.

In October 2019, Univision reported that an ICE deportation officer used a Stingray — a surveillance device that secretly mimics a cell-phone tower — to track down an immigrant suspected of “unlawful reentry” into the country. Little is publicly known about the use of Stingrays in ICE and CBP immigration enforcement operations, but we know they’ve used the technology repeatedly.

Stingrays, also known as cell-site simulators, track and locate cell phones — and the people using them. Pinging away as they are carted around in unmarked vehicles by law enforcement agencies, these devices ensnare not only a suspect’s cell phone, but innocent bystanders’ phones as well.

The use of powerful, surreptitious surveillance equipment is concerning in any context, and all the more so when done by ICE and CBP — agencies with a long history of abusive surveillance practices that include unlawfully tracking journalists and advocates and subjecting people to invasive searches of their electronic devices at the border. And when those agencies use these tracking technologies in secret, stonewalling our requests for information, we should all be concerned.

That’s why today the ACLU and the New York Civil Liberties Union have filed a lawsuit asking a federal court to order CBP and ICE to produce a range of records about their use, purchase, and oversight of Stingrays.

Transparency is a crucial first step to accountability. For more than two years, ICE has been “processing” our FOIA request for more information on its use of Stingrays. For its part, CBP has claimed that they were “unable to locate or identify any responsive records” — but that’s a completely implausible response. As we’ve cited multiple times, a December 2016 report from the House Committee on Oversight and Government Reform discloses that, as of 2016, CBP and ICE had spent a combined $13 million to purchase and operate at least 92 cell-site simulators.

The public has a right to know if and how often ICE and CBP are using Stingrays, which were originally intended for use by the military and intelligence agencies, for civil immigration enforcement operations. We also have a right to know if the agencies have taken any steps to protect the privacy of bystanders swept up by Stingrays, whether they inform people in immigration court proceedings when a Stingray has been used against them, and what limits, if any, exist on the use of this technology.

It is only with a better understanding of how Stingrays are being utilized within the Trump administration’s immigration enforcement operations that we help ensure people are being protected from unjustified surveillance and targeting.

Alexia Ramirez, NYU Technology Law & Policy Clinic,
& Bobby Hodgson, Staff Attorney, New York Civil Liberties Union

You might think that Rep. Devin Nunes (R-Calif.), the Ranking Member of the House Intelligence Committee, would be too busy to file baseless defamation lawsuits against anonymous Twitter accounts. But you’d be wrong.

Last year, Rep. Nunes sued a number of people who were mean to him online, including the Twitter parody accounts Devin Nunes’ Mom and Devin Nunes’ Cow. Now, he’s trying to unmask the Cow by subpoenaing the author’s identity from a local law firm. The ACLU and Public Citizen have filed a friend-of-the-court brief urging the court to block Nunes’ subpoena because it violates the First Amendment right to anonymous speech.

From Sam Adams to Mark Twain, Americans throughout history have used pseudonyms to criticize public officials. People adopt pseudonyms for a number of different reasons, such as protecting privacy and preventing official retaliation. The Supreme Court has made clear that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.”

To protect anonymous speech, courts require defamation plaintiffs to satisfy a number of criteria before allowing them to use subpoenas and other discovery tools to unmask anonymous speakers. As particularly relevant here, a plaintiff must demonstrate that the defendant’s statements are plausibly defamatory (i.e., not protected opinion, parody, or political rhetoric) and produce evidence showing that the defendant’s statements were actually false. These requirements prevent plaintiffs from using meritless defamation claims as a vehicle to identify anonymous critics for purposes of retaliation, while allowing plaintiffs with legitimate claims to proceed. As we argue in our friend-of-the-court brief, these safeguards are not just good policy – they’re required by the First Amendment.

Rep. Nunes has utterly failed to satisfy these constitutional requirements. His defamation claims against the Cow are based on constitutionally protected statements of opinion and political rhetoric, such as the contention that Rep. Nunes is a “treasonous cowpoke” whose “boots are full of manure.” Rep. Nunes may not like these characterizations, but the First Amendment vigorously protects the right to use creative expressions of contempt when criticizing government officials. Even if Rep. Nunes had managed to identify a plausibly defamatory statement in his complaint, his subpoena would still fail because he has not submitted any evidence demonstrating that the allegedly defamatory statements about him are false.

Unfortunately, Rep. Nunes’ quest to unmask the Cow is no laughing matter. If he succeeds, government officials, large corporations, and other powerful figures will have a readymade playbook for abusing the judicial process to identify, punish, and silence their critics. Here’s hoping the court throws cold water on Rep. Nunes’ overheated claims. Maybe then he’ll finally learn to leave the Cow alone.

Brian Hauss, Staff Attorney, ACLU Speech, Privacy, and Technology Project

This past year has been a critical one in the fight for reproductive freedom. For decades, politicians who want to interfere with people’s personal decisions about pregnancy have worked to push abortion care out of reach. They’ve quietly passed 483 state abortion restrictions since 2011 — including 59 new restrictions passed in 2019 alone. And after Trump was able to put two new justices who are hostile to abortion rights on the Supreme Court, politicians decided to go for broke. 

Since Justice Kavanaugh’s confirmation, seven states have passed laws banning abortion from the earliest days of pregnancy, all of which have now been blocked. The ACLU has challenged five of the new early bans, stopping these laws from going into effect in Alabama, Georgia, Kentucky, Missouri, and Ohio. Because of our work alongside our partners, abortion is still legal in all 50 states.

The threat to abortion access is real, and with such a volume of anti-abortion laws being passed, it can be hard to stay hopeful. But even as we saw extreme attacks throughout the South and Midwest, 2019 was also a banner year for historic wins.

In seven states, legislators passed eight bills to protect and expand access to abortion care. New York and Illinois passed Reproductive Health Acts, laws recognize the right to prevent, end, or continue a pregnancy as fundamental; treat abortion as health care rather than a crime; authorize nurse practitioners and other advance practice clinicians to provide abortion care; and remove outdated abortion restrictions from their books.

This victory was especially important in Illinois, which is surrounded by states that are hostile to abortion rights and already serves as a refuge for those who cannot obtain care — like in neighboring Missouri, where the last abortion clinic hangs by a thread.

Vermont and Rhode Island also acted to ensure that the right to make decisions regarding pregnancy will remain protected in their states, regardless of what the Supreme Court might do to Roe v. Wade. And Nevada, whose voters had already ratified abortion rights at the ballot in the 1990s, repealed a law that put people at risk of prosecution for ending a pregnancy on their own and updated its informed consent law to be aligned with the current standard of care.

In California, a coalition of student organizers from across the state led the campaign to pass a first-in-the-nation law to guarantee access to abortion pills on state college campuses and universities at student health centers. More than half of all students in University of California and California State Universities are low income, and students of color, low-income students, first-generation college students, and students who are already parents or supporting their families are particularly harmed by barriers to accessing comprehensive reproductive care. This move ensures that thousands of students can get timely and affordable access to abortion care on campus when they need it.

Maine enacted two new laws. The first allowed qualified, non-physician health care professionals to provide abortion care, increasing the number of publicly-accessible health centers where someone could get an in-clinic abortion procedure from 3 to up to 18 locations. The second guaranteed that abortion will be covered in public and private health care plans, ensuring that people don’t have to choose between paying their bills and getting the abortion care they need.

We haven’t seen such robust protections enacted since the early 1990s — the last time people feared that the Supreme Court might overturn Roe. Recognizing the unique moment in which we found ourselves, ACLU staff at national and state offices worked to help secure these wins and channel fear and anger into action, whether by providing testimony and expert analysis, collaborating with coalition partners and lawmakers to successfully fend off attacks, or mobilizing constituent support.

The threat to abortion rights has by no means passed and the work isn’t over. We know that states passed these abortion bans in the hopes that the Supreme Court will take up one of the cases challenging them and rule to overturn or further dismantle Roe. And we know that more states are lining up to join them by passing additional bans when their legislatures reconvene in January.

Abortion opponents never rest, but neither do we. We will continue to prepare for and combat the worst effects of the Trump era while working to build a world in which all people can make the reproductive decisions that are best for them and can obtain the care they need.

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

Jessica Arons, Senior Advocacy and Policy Counsel for Reproductive Freedom, ACLU